GREENVILLE, SC — The legal fight over the federal government’s limits on paddling the headwaters of the storied Chattooga River has cost untold sums of money to defend, and years later, an end still isn’t in sight.
This week, a collection of paddlers demanding year-round access to the remote and sometimes treacherous 21-mile stretch of the river filed its intention to appeal an Upstate federal judge’s dismissal earlier this year of the group’s legal actions.
If the plea to the 4th U.S. Circuit Court of Appeals – and, possibly later, the U.S. Supreme Court – fails, paddlers say they can only hope that a compromise giving them access for five months out of the year will prove over time that kayaking and similar boating activities don’t threaten the environment and solitude of the headwaters.
“I think after years of doing that, maybe even one year of doing that, it will become very obvious: What was the big deal?” said Nathan Galbreath, a Greenville attorney who has represented the paddling advocacy group American Whitewater in its lawsuit alleging the U.S. Forest Service has violated boaters’ constitutional rights to access the public resource in full. “Why has there been a dispute about this for over a decade when it was a complete non-issue?”
The U.S. Forest Service said this week it intends to continue limiting access to the headwaters for the foreseeable future, based on its 2012 management plan, the latest of several such plans implemented over the past four decades.
Paddlers have always been allowed to float on the lower two-thirds of the river.
“The decisions that were made in 2012 remain in place today, and we expect that to continue,” Forest Service spokeswoman Michelle Burnett told GreenvilleOnline.com.
However, Burnett said that the Forest Service, as part of its decision, must monitor all recreational uses “to ensure that we’re managing the resource appropriately.”
There is no date set for when its first findings will be available for the public, she said.
The Chattooga is one of the Southeast’s only free-flowing, non-dammed rivers, responding suddenly and violently to rainfall, making for treacherous conditions suitable only for experienced paddlers.
The river – which flows for 57 miles from the Nantahala Forest in North Carolina, passing through Oconee County as it helps form a border between South Carolina and Georgia – was featured in the classic 1972 film “Deliverance,” the Southern Gothic story of four Atlanta businessmen who find themselves consumed by the wild as they canoe down the river.
The movie’s popularity brought an explosion of interest in paddling on the river.
It was at that time, according to government studies, that anglers who long enjoyed solitude began to collide with canoeists and retreated to the upper one-third of the river.
In 1976, as part of Congress’ passage of the Wild and Scenic Rivers Act, the government banned boating above Highway 28 – but the basis for the restriction is the subject of debate today.
Paddlers argue that the restrictions unfairly protect the interests of anglers who fish for trout artificially stocked into the river.
They say the government has offered no strong basis to limit paddling to only the lower two-thirds of the river and that there is evidence early on that the government considered boating a valuable recreational use that should be protected.
Anglers and other environmental groups contend that kayakers are disruptive and that the restrictions are an effort to “zone” recreational uses, not violate rights.
In 1985, the Forest Service issued a management plan that kept the boating ban in place.
In the 1990s, technological advances in boats had attracted paddlers who as time passed challenged the ban.
In 2002, paddlers requested a review after the Forest Service made amendments but didn’t address boating restrictions. In 2004, the government ruled to keep the ban in place.
However, a year later, the chief of the Forest Service determined that the decision to ban boating lacked sufficient basis and ordered the issue be studied.
The Forest Service in 2009 restored some boating access but soon after repealed the decision, which prompted American Whitewater to file its lawsuit in Anderson district federal court that same year.
In all that time, the only paddling allowed in the headwaters had been a two-day trip in 2007 offered by the government to a small group as part of the decision-making process.
In April, U.S. District Judge Mary Lewis ruled that the Forest Service’s final administrative decision in January 2012 was legal, dismissing claims by American Whitewater that the government relied on weak and contradictory arguments to limit paddling.
The government’s administrative decision included a compromise to allow paddling from the beginning of December to the end of April, during times when river flows are high enough to support boating and fishing opportunities are limited.
The plan allows for non-motorized, non-commercial boating on the headwaters on about 17 miles of the 21-mile stretch.
Paddlers are confined to daylight hours and when water levels reach 350 cubic-feet-per-second, which is measured by a device and the levels posted online.
Boaters must self-register at kiosks at four trail head locations, and they are limited to a maximum group of six and minimum group size of two boats.
In her decision, the judge wrote that the government’s restrictions were based on evidence of past conflict between boaters and other users and that federal law recognized paddling as only a part of overall recreational uses, not a protected activity in and of itself.
Legal documents have suggested costs into the millions navigating through legal and administrative challenges, though the Forest Service can’t pin down an exact number.
“I really can’t estimate how much the process has cost,” said spokeswoman Burnett, “but we are implementing a solid set of decisions based on strong analysis.”
Legal action has brought results in the form of limited access that had been denied for decades, said Galbreath, the American Whitewater attorney.
“Overall, this is an important victory,” he said. “Certainly an active legal strategy has been important in partially restoring boating access on the Chattooga headwaters.”
As the wheels of the legal system churn, Galbreath said that where previous bans denied any opportunity to prove that boating isn’t a threat, the limited access will show that restrictions aren’t necessary.
“Now you have boaters that are actually able to use the resource, and over time the agency is going to realize this is not a problematic activity and there’s no reason to restrict it to only five months out of the year,” he said. “If you let it go all 12 months out of the year, there would be no adverse impacts on the resource or the users of the resource.”